George Mason University - Antonin Scalia Law School, Faculty; The Green Bag

Abstract

In their book "The Brethren: Inside the Supreme Court", Bob Woodward and Scott Armstrong tell a small but striking story of the racial insensitivity of Justice Harry A. Blackmun. It happened during the drafting and circulation of opinions in Flood v. Kuhn, the 1972 baseball antitrust case. As the story goes, when Blackmun circulated the first draft of his opinion in Flood, with its famously romantic introductory salute to the good old days of baseball and list of "celebrated...names" from the history of the game, the list of names was as segregated as the Topeka public schools in 1954. Blackmun had excluded African Americans from his list of baseball celebrities. It was only when pressed to do so by Justice Thurgood Marshall that he added black players to the list - Satchel Paige, Jackie Robinson, and Roy Campanella.

It has been said that this story from "The Brethren" "makes no sense," but that is not enough to make it false. "The Brethren" accurately reports some pretty nonsensical behavior by people who worked at the Supreme Court during the period covered by the book (1969 to 1976). Moreover, the authors of "The Brethren" claim there is documentary proof of their story of Blackmun-versus-Marshall in Flood. Nevertheless, the story is false. The document from which the authors quote - Blackmun's allegedly racially exclusive circulated first draft in Flood - does not exist and never did. Paige, Robinson, and Campanella were present in the first circulated draft and thereafter. And thus Marshall's objection to the offending draft never occurred either. There was nothing to object to.

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